As other, better writers than me have pointed out, this recent election has swept a wave of ultra conservative state legislators into office. In some states, they have total power. As those who live in those states are preparing for the worst, one of the first things coming under assault is the basic freedom of women.
And this is NOT a "choice" thing, either. this is about a "biblical" interpretation of the role of women, as expressed by the most fundamentalist sects out there. Real Taliban stuff.
This means that a woman's right to determine her own reproductive health care will be the first thing attacked. States will seek to bring direct challenges to Roe v Wade with the laws they pass.
But let us take heart. While these state legislatures will attempt to put so many restrictions on abortions and other reproductive health care that virtually no one will be able to get an abortion, let alone contraceptives, we have a BIG legal argument ready to go that will shatter the dreams of these people.
The argument is simple. Forcing a woman to give birth when she doesn't want to give birth is slavery.
Here is the Thirteenth Amendment to the United States Constitution:
Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Section 2. Congress shall have power to enforce this article by appropriate legislation.
That's it. Slavery and involuntary servitude SHALL NOT exist within the United States.
What does that mean?
Well, in United States v. Kozminski,, the SCOTUS defined "involuntary servitude" as:
Situations where a "master" subjects the "servant" to
1.Threatened or actual physical force,
2.Threatened or actual state-imposed legal coercion or
3.Fraud or deceit where the servant is a minor, an immigrant or mentally incompetent.
Pay close attention to number 2. But more on that later. Also notice that psychological coercion is not listed. That, however was happily remedied, thanks in no small part to the Vice President. The Trafficking Victims Protection Act of 2000, P.L. 106-386, which contains the Violence Against Women Act, expands the federal statutes' coverage to cases in which victims are enslaved through psychological, as well as physical, coercion.
So if we have a situation where a person is subjected to physical, psychological, or STATE-IMPOSED coercion, a 13th Amendment case can be built.
So let's examine the case for reproductive rights and the 13th Amendment.
The act of carrying a child to term is a very physically demanding thing. Or so I've been told. Besides the obvious challenges, there are others that are unseen. My sister in law had to have an amniocentesis done because she was a potential carrier for some condition. HUGE risks involved. Another sister in law, as well as my mother, had severe complications from Rh incompatibility. My cousin's wife had so many miscarriages they didn't even tell their parents they were pregnant until the fetus was viable. In addition, there are so many outside influences that can turn a pregnancy into a life or death situation. And that's not taking into account hormones and the mental stresses being pregnant entails.
And that's just if you WANT to have the child.
We are horrified by stories of young girls sold into sexual slavery all over the world. Forcing women to carry unwanted or accidental children to term is a form of slavery in that order. And forcing them to carry that child at the risk of their OWN life is cruel and unusual punishment (Eighth Amendment arguments are another issue).
I am a science fiction reader. And science fiction is a good milieu to insert allegory or social commentary. I speak of two societies in particular. First, for all the Trekkies out there, the Ferengi, while a commentary on our corporate culture, also are a commentary on gender roles. Theirs is a male dominated society where the women are forced to own NOTHING. They have no clothes, they are not permitted to conduct ANY kind of business, they cannot participate in any civic atcivity, they are there just for reproduction and the raising of young. Sound familiar? There are many so-called "Christian" sects in this country that practically treat "their" women that way. Second, in Frank Herbert's Dune universe, there is a society that has gone "all the way"--that is, the women are "converted" into nothing more than giant, living wombs, while the women themselves are lobotomized and essentially comatose.
Is this what some of our "leaders" want for women? I'll leave the hyperbole to you all ;).
So let's get back to that #2 point outlined in Kozminski: Threatened or actual STATE-IMPOSED LEGAL coercion. The interpretation to mean that a state cannot legislate something into law that is coercive. Now as has been shown, the act of carrying a child to term is both a physical and mental challenge. It stresses a person. You have to WANT to go through it. Being forced BY LAW to go through the "joys of pregnancy" against one's will certainly falls under the definition of state-imposed legal coercion. PLUS, there is the added financial burden as well. Having a child costs money. Several thousand dollars of money. By forcing a woman to have a child, the state is forcing that woman to incur debts and costs she may be unable to pay.
So in the end, woman's reproductive rights will probably not be taken away. A good lawyer can use this argument and win every time. When blastocyst sentience is proven by science, then there will be another conversation.
So, now we fight on two fronts. We need to keep watch on making sure Roe isn't overturned, of course, but our prime focus should be on these restrictive laws.
After all, they will be insidiously written so that nothing in the laws explicitly takes a woman's reproductive rights. They will just make it next to impossible for a woman to get the procedure done. We must, in our debates and legal challenges, compel the issue and change the language to what we here have been calling it for some time--forced birth.
For when all those Bible-thumping people talk about "killing babies" and "abominations" we need to have a physical, concrete example of what they want to achieve, and use the starkest term possible. Think about it. Imagine a PSA where you have a young (under 16 is good) pretty white girl preferable blond--think Elizabeth Smart) forced to carry the baby of the (insert racial/ethnic preference du jour) man who raped her. (Yes, it's an ugly and stereotypical thing to do. And I apologize for suggesting it. But only a little. In fights like this, we ALSO need to play dirty as well. A little Machiavelli in moderation, as it were.) And we must constantly use that word. FORCED. Forced birth. It's an ugly sounding term, for an ugly practice. I've used it in arguments with wingnuts, and they immediately go on the defensive. And badly, too.
We rarely have messaging victories. We rarely have been able to define an issue. This is a chance for both.
AFTERWORD: There are some things I haven't touched on. The so-called "personhood" amendments, for one. Designed to get around "restrictions" like the 13th Amendment, these would make it possible to call a fertilized egg a "whole and complete person in possession of all the rights and privileges of a citizen". Which is a very slippery slope--after all, there would be an inquest after each miscarriage or stillbirth to determine "fault".
I also haven't discussed Justice Scalia's recent revelation that he thinks women aren't considered a "protected class" as described by the Equal Protection Clause of the 14th Amendment. I would also take it to mean that he thinks women don't fall under the jurisdiction of the 13th Amendment either.
But these are topics for others to cover. I'm just here to make a case for reproductive rights as falling under the jurisdiction of the 13th Amendment.